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Opper v. Fred Beans Motors of Doylestown, Inc.

United States District Court, E.D. Pennsylvania

September 6, 2019

ERIC OPPER, Plaintiff


          JOYNER, J.

         This civil, employment action has been brought before this Court for disposition of the Motion for Summary Judgment of Defendant, Fred Beans Motors of Doylestown, Inc., d/b/a Auto Express of Doylestown. After careful review of the record evidence in this action, the Motion shall be GRANTED IN PART and DENIED IN PART.

         Factual Background

         On or about January 2, 2017, Plaintiff, Eric Opper began working as an automotive repair technician for Defendant Fred Beans Motors of Doylestown at its Auto Express location at 838 Easton Road in Doylestown, Bucks County, Pennsylvania. (Pl's Compl., ¶s 8, 12; Def's Statement of Undisputed Material Facts [“Def's Statement”], ¶ 18). At the time of his hire, Plaintiff was 51 years old and had spent most of his working life, since 1984, in the automotive repair industry. (Pl's Compl., ¶ 11; Pl's Counterstatement of Material Facts [“Pl's Counterstatement'], ¶ 1).

         Fred Beans Motors and Auto Express are both owned by Fred Beans Holdings, Inc., which is the parent company for some 19 automobile dealerships and other businesses, all of which have a centralized Human Resources Department located at 3960 Airport Boulevard in Doylestown, PA. (Complaint, ¶ 8; Def's Statement, ¶s 1, 2; Declaration of Daniel Milewski, annexed as Exhibit “A” to Def's Motion for Summary Judgment, ¶2; Deposition of Daniel Milewski, annexed as Exhibit “E” to Pl's Response to Def's Motion for Summary Judgment (“MSJ”), at p. 114-115). At the time of his hire, Plaintiff was paid at the rate of $15 per hour whereby he was paid for the number of hours worked and not by the job. It was understood that if Plaintiff had a favorable job review after he had worked 60 days, his rate of pay would increase to $16 per hour. Plaintiff in fact did receive a positive 60-day review and the $16 per hour rate in March, 2017. His hourly rate was again increased to $17 per hour two months later, in June, 2017. (Exhibit “A-4” to Def's MSJ).

         It was also understood at the time of hire that Plaintiff would obtain his certification to conduct Pennsylvania state emissions inspections and that when he did so, he could command a higher rate of pay. Plaintiff secured his certification in August, 2017 and his rate was then increased to $19 on the “flat-rate”[1] pay plan. (Exhibit “A-4, ” Def's MSJ). Then, a few weeks later and on the basis of Plaintiff's reporting that he had another job offer from a nearby dealership, Plaintiff's hourly rate was again increased to $23 per flat-rate hour. (Exhibit “A-4” to Def's MSJ).

         From all appearances, Plaintiff's job performance was good and thorough, although his production was described as “not better than average.” (Exhibit “C” to Def's MSJ, Deposition of William Dannehower, at p. 67). He received favorable performance reviews from his supervisor, William Dannehower, with comments such as: “If every technician was as detailed as Eric, we would be able to deliver the best service;” “Eric does not give up! He will research until he finds the answer. He is Auto Expresses Trainer. He helps all the younger technicians;” and “on time, dependable, and good communication.” (Exhibits “H” and “I” to Pl's Response to Def's MSJ).

         After Plaintiff's compensation structure was changed from hourly to the flat-rate system, it was Plaintiff's understanding that he was to be credited with 5/10 (1/2) of an hour pay for assisting other technicians with their repair jobs. Plaintiff also came to believe that he wasn't being fully compensated under the flat-rate system for the work he was performing and he began to complain about his pay to his co-workers. (Exhibit “D” to Def's MSJ [Plaintiff's Deposition], pp. 169-187). At times, these complaints took the form of Plaintiff yelling and screaming about his hours being terrible and not being treated fairly, swearing and throwing tools. (Exhibit “B” to Def's MSJ, ¶ 7; Exhibit “F” to Def's MSJ [Deposition of Jeffrey Pursell], pp. 50-55; Exhibit “H” to Def's MSJ, pp. 24-26).

         On March 31, 2018, Plaintiff registered an anonymous complaint with Lighthouse Services, Inc., Fred Beans' outside ethics/employee reporting hotline, against one of Auto Express' Assistant Service Managers, Nicholas Burella. Specifically, Plaintiff alleged that Burella had groped him twice and that he had witnessed Burella groping some other employees as well. Plaintiff's Lighthouse report also stated that Plaintiff “told him [Burella] to never touch me again and that it's assault…. I have noticed that my scheduled hours and flat rate hours are going down since this happened. There are also flat rate hours that are unaccounted for as well.” (Exhibit “A-5” to Def's MSJ). Plaintiff also lodged a private criminal complaint against Burella with the Plumstead Township Police Department, which initiated an investigation.

         Promptly upon receipt of Plaintiff's complaint, Fred Beans Human Resources Director Dan Milewski also commenced an investigation, meeting with William Dannehower, who in addition to being Plaintiff's supervisor was Auto Express' general manager, and subsequently individually interviewing Plaintiff, Burella, Auto Express' other Assistant Service Manager (“ASM”) Jeffrey Pursell, and the other auto repair and lube technicians with whom Plaintiff worked. (Exhibits “A-6” - “A-16” to Def's MSJ). At the conclusion of the investigation, Fred Beans' management had just one employee (other than Plaintiff) who variously stated: (1) that he saw Burella touch Plaintiff “in an inappropriate way;” and (2) that he “saw something out of the corner of his eye” but “was not sure what happened when Nick was passing by Eric.” (Exhibit “A-13 to Def's MSJ; Exhibit “H” to Def's MSJ, pp. 27-28, 31-335, ). Burella denied ever touching Plaintiff or anyone else inappropriately or ever touching Plaintiff or anyone else intentionally. All of the other employees denied having seen or having any knowledge that Plaintiff had been groped or knowledge of any other inappropriate physical contact between any of the employees or between Burella and any of the employees, although most of those interviewed stated that all of them (including Plaintiff) had talked and joked about matters of a sexual nature. (Exhibits “A-6” - “A-16” to Def's MSJ).

         As a consequence, the only discipline that Burella was given by Fred Beans was a written warning and then he and the entire Auto Express staff were required to again undergo sexual harassment training and training regarding proper workplace behavior. (Exhibits “A-17” - “A-18”). At the conclusion of the police inquiry, the investigating Plumstead Township police officer and the Bucks County district attorney deemed there to be insufficient evidence to justify the filing of criminal charges[2], and that matter was closed.

         Subsequent to the closing of the investigations into his complaint, Plaintiff came to believe that, in addition to not being properly credited for the work he was doing, Burella was not giving him work and/or was giving jobs that should have been Plaintiff's to other repair technicians. (Exhibit “D” to Def's MSJ, pp. 230-233, 312-314). On the evening of April 27, 2018, an incident occurred after ASM Jeff Pursell read Plaintiff his time sheet. Plaintiff asked if a tire patch job was on the sheet for which Plaintiff believed he should be credited with 2/10 of an hour. When Pursell responded that the job was not on Plaintiff's time sheet, a discussion ensued between the two with Plaintiff waving his arms and, as reported to Dannehower, yelling that he “does not work for free, ” and “do you know how much these tools cost?” (Exhibit “A-19, ”Exhibit “D” to Def's MSJ, pp. 319-328). Dannehower issued Plaintiff a counseling form for the incident which specifically advised Plaintiff that if he had a concern or problem, he was to follow the chain of command and talk to a manager first. The form also contained the following notation:

Mr. Opper was told by Dan H/R that can not act this way. Mr. Opper will make sure this type of behavior never happens again. Mr. Opper will treat all employees with respect. This is a Final Warning. If this happens again the result will be termination.

(Exhibit “A-19” to Def's MSJ).

         A second counseling form was written on May 18, 2018 arising out of another incident of Plaintiff complaining that “he should have gotten a job that Matt got. Eric told Matt he should have that job and Matt gave that job to Eric.” (Exhibit “A-18, ” “D, ” pp. 330-350 to Def's MSJ). On that occasion, William Dannehower again reminded Plaintiff that he “had been told that if he gets frustrated or feels being treated unfairly he needs to discuss with a manager.” (Exhibit “A-20;” Exhibit “C, ” [Dep. Of William Dannehower], pp. 90-92, 109-111, 113-117, 129-139). Then, on July 12, 2018, yet another incident was reported to Dannehower this time by Jeff Pursell that Plaintiff had yelled at him and was angry because he wasn't getting credited with more time for working on a Jaguar. Evidently, Plaintiff had failed to check the driver side rear caliper before putting new brakes on the passenger side. After the customer was notified, he elected to not replace the rear brakes at that time and Plaintiff was directed to put the old parts back on the vehicle. Plaintiff apparently began yelling at Pursell and demanding that he be credited with more time for the work that he had performed. As a result of this outburst, Plaintiff's employment was terminated on July 17, 2018. (Exhibits “A-21 - A-22;” Exhibit “C, ” pp. 143-156 to Def's MSJ).

         Plaintiff subsequently commenced this lawsuit on October 2, 2018 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000d, et. seq.[3], the Age Discrimination in Employment Act, 29 U.S.C. §621, et. seq. (“ADEA”), the Pennsylvania Wage Payment and Collection Law, 43 P.S. §260.3(a) - (b)(“WPCL”), and under Pennsylvania common law for wrongful discharge. Inasmuch as discovery in this matter has now closed, Defendant filed for summary judgment on June 3, 2019.

         Summary Judgment Standards

         The fundamental principles governing motions for summary judgment are articulated in Fed.R.Civ.P. 56, subsection (a) of which provides:

A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

         It is axiomatic that in considering a motion for summary judgment, a reviewing court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Burton v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir. 2013); Roth v. Norfalco, LLC, 651 F.3d 367, 373 (3d Cir. 2011). “The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'” El v. SEPTA, 479 F.3d 232, 237 (3d Cir. 2007)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). An issue of fact is material and genuine if it “affects the outcome of the suit under the governing law and could lead a reasonable jury to return a verdict in favor of the nonmoving party.” Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016)(quoting Willis v. UPMC Children's Hospital of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)).

         Further, inferences must flow directly from admissible evidence. Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). In order to survive summary judgment, the non-moving party must present more than a mere scintilla of evidence - there must be evidence on which a jury could reasonably find for the non-movant. Burton, supra, (quoting Jakimas v. Hoffman-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)).


         As noted above, Plaintiff here is advancing two claims of employment discrimination under federal law and two claims under Pennsylvania state law - one under common law and one statutory.[4]We address each claim seriatim.

         A. Count I - Title VII Sexual Harassment, Retaliation

         For his first cause of action, Plaintiff alleges that he was sexually harassed by Burella, that he was subjected to a sexually hostile work environment and that he was retaliated against for filing a complaint of sexual harassment. As we explained in footnote 3 above, we presume that Plaintiff is proceeding under 42 U.S.C. §2000e-2 which renders certain employment practices unlawful. Subsection (a) of that statute states the following:

(a) Employer practices.
It shall be an unlawful employment practice for an employer -
(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such ...

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